If the copyright on "Steamboat Willie" expired, anyone could copy the work or create derivative works from it featuring a similar character, but they could not call the character in derivative works Mickey Mouse, nor use Mickey Mouse's image in such works.

No, when the Steamboat Willy copyright expires, there is no longer a copyright which prohibits people from making or distributing additional copies of the work, from publicly performing or displaying the work, or from preparing new derivative works based on it (such as a new Mickey Mouse short in which he commands a homemade submarine powered by barnyard animals or something). Of course, attributes of the Mickey Mouse character which originated in later, still copyrighted material would not be available; thus you're using the original 1928 black and white Mickey, or forking a new version of the character off from there. Can't give him a dog named Pluto, nor even the distinctive Mickey Mouse voice, as those both appeared in later films.

They would, however, be able to still freely copy the original work even though it featured said character that is still under trademark because the copy of the work is not considered a new work, it is considered a *COPY*

I don't know why that would matter from a trademark perspective. Trademark is concerned with goods bearing a mark all originating from the same source, so as to protect consumer expectations regarding consistent levels of quality. Even the goods of two different sellers are indistinguishable, that alone doesn't mean that one is free to use the trademark of the other.

The trademark issue here is whether the MICKEY MOUSE trademark even survives, at least with regard to goods such as motion pictures. This is because the MICKEY MOUSE trademark is inescapably connected to the Mickey Mouse character, and now the character is free for all to use, meaning that his presence in a work no longer indicates that it comes from a single source. That -- the freedom to use the character, and the loss of the single source expectation of consumers -- is what kills the trademark. And we know that the copyright lapsing will control what happens to the trademark based on precedents like Dastar (where the Supreme Court said that trademark is not allowed to operate like a perpetual form of copyright), and SHREDDED WHEAT (where the Supreme Court said that where a patent expires, anyone is free to use the invention and to use the previously trademarked, descriptive name of the invention).

the work uses the trademark with permission

First, there would largely no longer be a trademark. Second, that would be clear naked licensing, which would likely invalidate the mark anyway.

Sorry, but no. If anyone can make a copy of a work featuring a trademarked character, then the trademark on that character, with regard to goods that are copies of creative works, has to lapse, as the mark has become generic in that context. Once the door is opened for multiple sources of identically marked goods, it kills the trademark. This is just the copyright version of the SHREDDED WHEAT case from the 1930s, plus a bit of the more recent Dastar case.

And the trademark can't prevent people from copying works or creating new derivative works that feature the same trademarked characters.

You're thinking of something more like nominative use, in which a third party can use a mark without permission under certain circumstances. I'm saying that there would no longer be an applicable mark at all.

The natural state of a creative work is to be in the public domain. Authors do not create copyrights; the public creates them (through our servant, the government), with the public benefit in mind. Some works aren't even eligible for copyright at all, because it wouldn't be for the public benefit. When a copyright is granted, it is for a limited period of time, because a perpetual copyright can never be for the public benefit.

Thus, a better way to imagine the situation is this: if the government owns a parcel of public land, such as a small building suitable for a restaurant at a visitor's center in a national park, it can rent the restaurant space to a private business for a period of time. So long as the restaurateur makes his rent and follows other previously agreed upon terms (e.g. compliance with applicable law, signage that complies with the standards set by the park administrators, etc) he is free to profit as much as he can.

But when the lease expires, the restaurateur cannot argue that his business venue has been taken from him, even though it might be a profitable location forever. It was never his to begin with; he just got to use it for a while.

Regarding Mickey Mouse, copyright policy has to ignore subjective assessments of artistic value. What's important is getting as many works as possible created, published, and into the public domain (and as close to the public domain as possible until fully in the public domain). That's how you best serve the public interest.

And if an author argues that his private interest is more important than the public interest, that's all well and good, and I don't have a problem with his self interest (indeed, we're relying on it to motivate him), but why should the public ignore its own collective self interest? As there's no possibility of a copyright without it being granted by the public, authors are not in a strong bargaining position.

Actually, the Copyright Act was replaced entirely in 1976 (becoming effective in 1978), and has been amended some, yet in substantial ways, since then. Noises are being made about a new Copyright Act coming along in the near future.

The person who wrote the summary is a bit confused. What happened is that the Warner claim was based on a copy published in 1935. Evidence was discovered of a copy that was published in 1927. That's not terribly interesting, but a copy published in 1922 has also come to light. That is interesting, because the cutoff for copyright on published works is 1923. (Due to the duration of copyright prior to the effective date of the 1976 Act, which retroactively lengthened the term of copyrights that were still in force)

Disney holds a trademark on Mickey Mouse, and can retain said ownership into perpetuity. That aspect alone can rightfully keep anyone else from utilizing the character in their own works, forever,

No, that part of the trademark will lapse when the copyright terminates. A trademark can't function as a substitute for a copyright. The remainder of the trademark might prevent people from selling MICKEY MOUSE brand breakfast cereal, but it would not stop them from using the character in their own works.

This is really the main reason that Disney is concerned about copyright terms; they know what would happen to the trademark.

Copyright is only tolerable if it is better for society than not having it. One specific implementation of copyright is better than another if it provides a greater benefit for the public than the alternative.

It's no more based on fairness than a zoning regulation requiring a certain setback from the street.

An exclusive right isn't a right that is held only by one party (and in fact, copyrights can be held by many parties), but is literally a right to exclude others.

So copyright isn't a right to make copies (that's free speech, and it applies even to works that aren't eligible for copyright). It is instead a right to exclude other people from making copies, and from doing certain other things with regard to the protected work.

As far as copyright on the glyphs for the letter font goes, the consumer or manufacturer who uses them, pays or has to pay for their use. I'm sure Microsoft and Apple license the various fonts included in their respective OSes.

Letter shapes are not copyrightable in the US. They may be eligible for a design patent, but that's relatively short-lived. Usually the only protectable thing, especially over a decent timeframe, is the name, as a trademark. That's why Apple's version of Helvetica from way back was called Geneva, and Microsoft's was called Arial.

How about forcing these descendents to donate their parents' assets to the public domain, just like copyrighted works?

We do.

We impose taxes on inheritances, because inheritance of substantial wealth is harmful to society. We impose taxes on property, because ownership of large, unproductive estates is harmful to society. We abolish property rights like the fee tail because inalienable property rights are harmful to society.

All property rights, beyond what an individual person can defend from others by force, relies entirely on the willing cooperation of others. The only reason I don't own the Brooklyn Bridge is because I can't convince enough people that I do. But if I were more convincing (or could overcome the force that would be mustered against me if I just tried to block others' access to it), my right of ownership would be perfectly legitimate.

Copyright operates similarly; no author has a right to tell others that they can't make copies, etc. of a work, merely because the author created it. All the author can do is keep the work a secret, if he's worried about that. Or he can convince others to respect his wishes. Just as you might not like to recognize my right of ownership of the Brooklyn Bridge merely because I really, really want you to, so too are third parties unlikely to honor a claim of copyright unless it provides some benefit to them that would not be enjoyed otherwise.

And so the deal with copyright is that we're willing to recognize an author's claim of copyright for a little while, because it seems to be useful to society, but eventually we're going to stop, and instead treat the work as being in the public domain, for the same reason. Authors can't stop that from happening, and there's too little benefit for the public in a perpetual copyright to bother recognizing them. It's a one-sided deal in favor of the public, but thems the breaks.

The whole point of copyright was to encourage writers and publishers and artists to invest time in making a good product.

No, the whole point of copyright was to promote the progress of science (which is an archaic term for knowledge) and to thus serve the public interest.

Half of that involves encouraging authors to create and publish works which they would not have created and published but for copyright. But the other half is to grant the least amount of protection, for the least amount of time, that is necessary to accomplish that.

And the success of any copyright law is measured in how much of a benefit it provides for the public (in terms of the number of works created and published), less how much harm it causes the public (by restricting the free use of the works).

The idea of copyright... was to provide payment for services rendered, which would encourage creators to make more quality products in the future.

No. First, copyright doesn't guarantee any reward for the author or publisher; that's left to the market. All copyright does is funnel some of the profits available for the work toward the copyright holder. If a work is a flop, the copyright holder doesn't make any money.

Second, copyright doesn't care about quality. A brilliant work gets as much protection as a crappy one, (and again, the market may reward crappy works over 'quality works). This is necessary because artistic value is a matter of subjective judgment that the government should not be involved in. Quantity is the only permissible metric, and since a larger number of works will tend to result in a larger number of 'quality' works (see Sturgeon's Law) it's all okay in the end.

Until relatively recently the only way to obtain a copyright was to explicitly submit the material to the Library of Congress for certification at which point you were granted a 14 year exclusive use. You could apply for an additional 14 year grant but after 28 years the material would be forced to fall into the Public Domain and permanently accessible from the Library of Congress. You had those maximum of 28 years to make as much return on your investment as possible, but you were expected to then reinvest that return into new ventures.

"Relatively recently?" What are you, a highlander?

The 14+14 term you describe lasted from 1790 to 1831. Then it became 28+14. And in 1909, it became 28+28. That's the term that changed relatively recently, in 1978, to life + 70, etc.

The sine qua non of a trademark is that all goods with the same mark originate from the same source. If this is true, the mark can be protected. If not, the mark cannot be protected. This is why trademark holders are always concerned with infringers; if the infringer is not stopped, there will be identically marked goods originating from different sources, and the protected status of the mark is jeopardized and can be lost.

Trademarks and copyrights only sometimes overlap with regard to the subject matter that they protect (e.g. a very artistic trademark could be protected by copyright as a work of art; a mere word used as a trademark could not be copyrighted, however). However, copyright is considered the superior right; a trademark is not allowed to function as a substitute for a copyright, nor to interfere with copyright policy.

This means that if the trademark is a character from a creative work, and the work is in the public domain, copyright law allows everyone to make copies and use the work and thus the character from the work, as they see fit. Trademark rights in the character can't interfere with this, so to the extent that there is a conflict, the trademark loses.

So the MICKEY MOUSE trademark might survive with regard to products unrelated to creative works, like those ice cream bars that looked like a Mickey Mouse head. But it would not survive with regard to movies, books, comics, television shows, etc. And I wouldn't want to bet money on whether it would survive with regard to things like t-shirts or hats that might feature Mickey Mouse in an ornamental capacity, rather than as a trademark. So a lot of the merchandising gravy train would derail.

Well, I wasn't the one using it, but in late 1998, I was working at a printer -- a big industrial one, with huge lithographic presses. The prepress department there was transitioning to using Macintosh G3s for DTP work, and I was there to help with that. The reason for the transition was that their old DTP needs had been served by some sort of DEC minicomputer.

It was about the size of a fridge, with dual 8" floppy drives, so I'm hoping it was a MicroVAX, but I don't recall. Each workstation wired into it had a VTerm, as well as a Barco graphics monitor and a mouse. You'd type in commands to their DTP software on the VTerm, then view the work as a line drawing on the Barco (all it was capable of -- photos had to be pasted in by hand) and adjust it with the mouse.

They'd been using the thing since the early 80s, but apparently it was breaking down and they were having trouble pulling people out of retirement to fix it, and that, plus the new digital press they were building, forced the transition to Macs.

The company got bought some years later, but is still in operation, so I guess things more or less worked out.

You are, I assume, aware that the days of the Alexandria library copying all works that entered the city were well over a thousand years before the printing press was even developed, let alone copyright created.

You were the one who claimed that most would-be pirates were discouraged from doing it prior to the invention of the printing press. Guess what? The high cost of making copies (and the relative lack of literate people to share them with, assuming that the author himself was even literate) discouraged authors from writing things down too.

Also, creators who did not want their works copied could prevent Alexandria from copying them by simply not going into the city

Wrong. You're conflating authors with their works. The only sure way an author could prevent Alexandrians from copying their works was to not create works in the first place.

If they created works, even if they were not written down, nothing stopped someone else from writing it down. (For example, Socrates never wrote anything; what we know of him comes primarily from the writings of his student, Plato; Another example is from the days of Elizabethan theater, when printers would have people dictate the scripts to plays, sometimes actors who had memorized the lines, sometimes just people with good memories who had been in the audience)

If works were created, written down, and shared with anyone, there was absolutely nothing that could keep the scrolls from getting copied or moved. Consider Virgil, who wrote fanfic (The Aneid) based on the epic poems of Homer (The Illiad and The Odyssey), but wanted all the copies burned; this was ignored, and the world is better off for it.

Fundamentally, it's the same issue with secrets, or any other information. The only way to control the spread of it is to either convince other people to respect your wishes (which they may or may not do according to their own self interest, and other factors), or to never tell anyone.

I don't think we can credit copyright with the increase in the number of works in existence in recent history, as compared with ages past. The real credit is probably owed to increases in literacy, improved artificial lighting, the development of printing (as well as improved paper and ink to support it), greater leisure time available due to a variety of technological and social advances, increases in the internal stability of much of the world (hard to sell books when bandits rob every wagon, or war ravages the country), etc. Copyright can be nice, but it gets way more credit than it deserves.

Copyright (by which I mean largely the form that it exists today and not as a collusion contract created by publishers) had an intended purpose that was to maximize the enrichment to society that can be obtained by the society having access to diverse kinds of creative works, and offering the creators of those works some means of controlling their works for at least a limited time at least gave many of them an incentive to not resort to self-censorship as their main form of such control.

Authors really just don't engage in self-censorship as a means of control. Copyright, from an author's point of view, is a way to recoup their investment. If they can't do that, they have to have other jobs that take time away from creating. Potentially, those jobs take away all their time from creating, so they don't create. It's rare as hell to find someone who is interested in creating works, has the financial means to do so without having to worry about the cost (and opportunity cost), yet refuses because they're a control freak. I'm confident that the sorts of authors you've identified are so rare as to not be worth concerning ourselves with.

As for the purpose of modern, authorial copyright (as opposed to the old stationers' copyright), you're almost entirely right: I'd only say that mere access is not enough. Rather, copyright is intended to provide an overall benefit to society by increasing the number of works which are created and published, while imposing the fewest and shortest restrictions on the public. It operates by providing some temporary benefits (whose actual value is determined by the market) to authors, but this is merely a means to an end, not an end in itself. If copyright were actually meant to benefit authors, it's clear that it has never done a good job of it at all. The stereotype of the starving author exists for a reason.

As a side point on the matter of controlling works for a limited duration, I am compelled to add that I do strongly believe that copyright durations are far too long today, and should be shortened drastically, by no less than a factor of 2, maybe even more, and with very minimal, if any opportunities for extension.

Personally, I would drop terms to a year, with numerous opportunities for renewal, but with overall maximum lengths that were still quite short (probably no more than 20 years or so, and less in the case of some types of works, such as computer software). The reason is that when we had renewal terms, many rights holders failed to renew, evidencing a lack of desire for longer copyright on their part, and getting works into the public domain faster through their inaction. Since everyone winds up as happy as they wanted to be in that scenario, I see no reason not to return to it.

Copyright is just an extension of the exclusivity that creators had over a work that creators enjoyed in the days before the printing press. Copying was hard enough and error prone that natural checks and balances tended to discourage most (but admittedly not all) from engaging in unauthorized copying.

What the hell are you talking about?

Unauthorized copying was absolutely standard practice everywhere in the world until the 18th century, and most places until well into the 19th and 20th centuries. Hell, some places, like Alexandria during the days of the famous library, made it government policy; any books that entered the city had to be turned over for the library to make copies of, if the librarians wanted.

And it's a good thing too, since every written work we have from antiquity which wasn't carved into stone or clay survived only thanks to unauthorized copying -- often many generations of copying, by many different copyists. Even then, we've lost a tremendous amount of material.

As for the difficulty of copying books by hand, that was equally difficult for everyone, whether authorized or not, so it didn't deter piracy.

As copying became easier, the only thing that was left was to either shrug and disregard it (in which case many creators would resort to self-censorship as a means of holding onto their exclusivity), or to manufacture a legal structure by which people who disregarded that exclusivity for at least a certain period of time could face punitive action for such behavior.

Copyright originated because publishers printed books (often without authorization; the authors had no rights) but didn't like to compete amongst themselves. So the publishers set up a cartel whereby they would agree which of them had the right to print a particular book. The author had no real say. And the government cooperated so long as they could censor anything they didn't like. It wasn't until substantially later that this system fell apart -- because people didn't like the monopoly -- and a replacement based on authors getting the rights was suggested. (And then the publishers fought that when they were unable to fully control it in the way that they had before, and even now publishers are the real powers behind and beneficiaries of copyright; authors need publishers far more than publishers need authors)

Yes. Ownership of anything -- a physical object, a certain exclusive right, a theoretical amount of money that lives as bits and bytes in a database somewhere -- is just a concept we have invented to help society function, like any other legal or financial instrument. We might all agree (or at least most of us would, I hope) that physical ownership is a useful concept and we should respect it and not commit theft, but ultimately that is just a social norm, enforced through other social norms such as laws and courts.

That's true. The problem you face, however, is that the social norm concerning creative works appears to be that it's perfectly okay for ordinary people to do things that constitute copyright infringement, at least if they aren't doing so for direct financial gain (i.e. if they aren't selling the copies). If the law were to reflect this social norm, copyright would not be as interesting an issue as it has become in the past 30-40 years. Instead we see copyright holders suing individuals, and trying to control the Internet so as to indirectly control individuals by limiting their options, so as to preserve the laws that enable a particular market, regardless of whether or not they conform to social norms.

But professional copyright infringement, where you're actively ripping off works for substantial profit, can be a criminal matter, punishable in criminal courts with fines and jail time. And that's what we're talking about here.

And it looks as though even for a sort of infringement that most people would agree should be illegal, the copyright maximalist faction is still going overboard. I certainly would agree that professional, profit-oriented copyright infringement ought to be prevented, but I would not go so far as to say that it would ever be appropriate to put someone in jail for as much as ten years over it; it's just not that important. Punishments should not be so draconian, especially given that it seems unlikely that it will accomplish a damn thing. A better solution would be to reform copyright so that there's less of a point in engaging in professional, profit-oriented infringement, rather than the current strategy which is to simply make it high risk, high reward. For example, just as repealing Prohibition undercut the mafia, and just as drug legalization and decriminalization undercuts criminals in the drug trade, legalizing some copyright infringement by people acting not for profit, and thus able to act openly, could undercut professional infringers.

Copyright is a reasonable economic instrument, in my opinion, at least until we find a better model for incentivising creative work that does at least as good a job.

Well, I'd point out two things here. First, there are pre-existing incentives that act independently of copyright; in many cases, copyright is not the primary incentive, and in many cases copyright is not even a necessary incentive.

Second, I agree that copyright is useful, but we ought to regulate how much copyright we have, and for how long it lasts, with an eye toward its utility. I'd bet good money that adding a ten year sentence for certain copyright infringements, and even enforcing it, will have zero meaningful effects on how well copyright serves society. Therefore, such punishments are inappropriate. Indeed, we ought to pare copyright down to the point where it has both the fewest restrictions on the public with the greatest incentivizing effects. Given the economics of the various copyright-related fields, I think you'll find that this would involve no criminal punishments, minimal civil penalties, minimal restrictions on individuals, and copyright terms of far shorter length than we see now.

Those professional infringers are sure making a lot of money doing something that supposedly doesn't cost the legitimate rightsholder anything.

I don't think that's true. Sure, I know about the lifestyle of someone like Kim Dotcom, but he's something of an outlier. Benny Glover made some money, but I don't think you'd say it was a lot.

Making counterfeit anything, and selling it to someone who knows it's counterfeit, only makes sense if you sell it for a very substantial discount below the legitimate price. The negative effect on the legitimate supplier, if there's any at all, is going to be far greater than the positive effect for the counterfeiter.